Delhi District Court
State vs . Shyam Sunder @ Ghanshyam S/O Sh. Devi ... on 7 May, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No.06/08
ID No.02404R0439452006
FIR No.529/06
PS Sultan Puri
U/s 302 IPC
State Vs. Shyam Sunder @ Ghanshyam S/o Sh. Devi Ram,
R/o P-28, Prem Nagar-II, Sultan Puri,
Delhi.
Date of Institution in Sessions Court : 04.09.2006
Date of transfer to this Court : 10.11.2008
Date of Judgment : 07.05.2011
JUDGEMENT:
1. In brief the prosecution story is that on 08.04.2006, on receipt of DD No.6 PP Prem Nagar, PS Sultan Puri, which was received through PCR, that near L-Block, main Mubarakpur Road, Prem Nagar-II, Sultan Puri, that one dead body was lying. The said information was reduced into the aforesaid DD and was marked to SI Dinesh Kumar for action, who along with Ct. Suresh, Ct. Shamsher State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 2 and Ct. Krishan Kumar reached the spot. In the meanwhile, Inspector Mir Singh, who also reached the spot on receipt of the said information, and he found that at L-Block, main Mubarkapur Road, Prem Nagar-II, Sultan Puri, opposite Vardhman Traders on the corner, SI Dinesh along with the staff was present, on the corner of the gali dead body of one male was lying, the head of which was in the North direction and the legs were facing South, the body of the deceased was soiled with blood and blood was also lying around the deceased.
2. It was also found that the throat of the deceased had been slit with some sharp edged weapon and he was also having cut marks on the wrist of right hand. He was also having cut injury on the back of his head. There was one white baniyan and blue colour pant on the body of the injured. There was one telephone diary stained in blood, which was found in his pocket. The age of the deceased appeared to be 32 years, height 5'8" colour wheatish, medium built. The dead body was tried to be identified, but could not be identified. State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 3
3. That it was also noticed that there was a trail of blood from the spot, where the dead body was lying to the H.No. L-100, inside the gali, and on the door of the said house, there were blood stains at various places and it was also found that there were dragging marks at various places, towards the said house. The blood was also on the door of the said house. On opening the door in the gallery, one spade (kassi), stained in blood, and one hammer were found. Inside the right hand room on the floor, there was heavy collection of blood. In the room opposite to the gallery, one pair of sport shoes blood stained along with blood stained socks were lying.
4. On inquiries, it was revealed that the said house, L-100/3 had been taken one person by the name of Shyam Sunder @ Ghanshyam, who was getting the said house repaired for some days. Since, no one was found in the said house, the crime team and the photographer, along with videographer was also called to the spot, who inspected the spot and got conducted the videography of the spot. Thereafter, I.O Inspector Mir Singh wrote a rukka and got State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 4 recorded an FIR, U/s 302 IPC at PS Sultan Puri, and the investigation(s) were taken up by him.
5. Thereafter, the I.O lifted the relevant exhibits from the spot, including the blood stained earth and earth control from various places, including the place, where the dead body was lying and from the rooms of the said house, which were separately seized. The I.O also seized the hammer and spade in a separate pullanda and along with one blood stained bed sheet from the said house. He also seized the building material, which was lying in the gallery of the said house. He also seized the shoes and the socks separately. The I.O also recorded the statements of the witnesses.
6. The accused was searched and was interrogated. He admitted his guilt and he made a disclosure statement and revealed that the dead body was of his co-gangster Sandeep Hooda, and both of them were members of in famous Anoop Gang, and he also disclosed that on 07.04.2006 in the evening, the aforesaid Sandeep Hooda had made a telephone call from STD and asked him to meet him. State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 5 Consequently, he had called him to the house in his possession, bearing No. L-100, Prem Nagar-II, and thereafter, there was a quarrel between them over the fact, who will become the kingpin of the gang, and after taking alcohol, he killed him with the spade (kassi) and hammer and thereafter, dragged his body and placed it near Vardhman Traders, L-Block.
7. Pursuant to the disclosure statement of the aforesaid accused, he got recovered one mobile phone, which had been given to him by one gangster of his gang, which was seized. He also produced one mobile phone, Tata Indicom make belonging to the deceased Sandeep Hooda. He also got recovered one pair of spot shoes, outside his house, which were blood stained, which were also seized. Thereafter, he also got recovered one shirt of white colour and black colour pajama from his house, which were also blood stained, which were also seized. Thereafter, he also got recovered one blood stained pair of socks, which were also seized.
8. Thereafter, the accused lead the police party to gali No.3, L- State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 6 Block, to an empty plot and got recovered one razor (ustra) with which he had killed the deceased, which was also seized. He also got recovered one mattress (daari), stained in blood from the said plot along with plastic jute (niwar), used in knitting the iron cots, which was also seized and he also got recovered one pillow, which was also seized.
9. Thereafter, the I.O got identified the dead body of the deceased from his relatives. Thereafter, postmortem on the dead body of the deceased was got conducted. After postmortem, the dead body was handed over to the relatives of the deceased.
10. Thereafter, accused produced photo copies of the documents of ownership of H.No. L-100/3, which were also seized.
11. Thereafter, during the investigation(s), I.O also seized the previous criminal records of the deceased Sandeep Hooda, who was declared proclaimed offender in some cases of Haryana.
12. After collection of the PCR form and relevant documents, including the scaled site plan, the relevant exhibits were sent to CFSL State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 7 Kolkatta for their forensic evaluation.
13. Upon committal of the case to the court of Sessions, a charge U/s 302 IPC was framed against the accused, vide order, dt. 21.11.2006, to which he pleaded not guilty and claimed trial.
14. Thereafter, prosecution in support of its case has examined 25 witnesses. PW1 is Rajender Prasad, the material witness of the prosecution and the witness of the last seen, who has turned hostile, PW2 is Roop Singh, the father of the deceased, who had identified his dead body, PW3 is Anand Prakash, who is the witness of the same fact, PW4 is Gulab, who had sold the plot No. 92C, Kirari Prem Nagar, i.e the house in question to one Shri Kishan vide documents, Ex.PW4/A to Ex.PW4/C, PW5 is Shri Kishan, the brother-in-law (Behnoi) of the accused, who has turned hostile, PW6 is Ram Singh, PCO Booth owner, PW7 is HC Ramesh Chander, who has proved the copy of the FIR, Ex.PW7/A, rukka Ex.PW7/B, PW8 is SI Matadeen, Crime Team Incharge, who has proved his crime team report, Ex.PW8/A, PW9 is Sh. Akhilesh Kumar Jha, another PCO State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 8 owner, PW10 is Ct. Dalbir, photographer of the crime team, who has proved the photographs of the spot, taken by him on 08.04.2006, which are Ex.PW10/A1 to A33 and negatives as Ex.PW10/B1 to B33, PW11 is Dr. Manoj Dhingra, who has proved the postmortem report of the deceased, Ex.PW11/A, and who had opined the cause of death as asphyxia and hemorrhagic shock, subsequent to cut throat injuries, PW12 is Ct. Suresh Kumar, who accompanied SI Dinesh Kumar to the spot on 08.04.2006, PW13 is Sh. Sanjeev Lakra, Nodal Officer, who has proved the call details of the mobile phone No. 9313422141 in the name of Smt. Sheela W/o Shyam Sunder @ Ghanshyam (accused), vide Ex.PW13/A, PW14 is Ct. Krishan Kumar, who also accompanied SI Dinesh Kumar to the spot on 08.04.2006, on receipt of DD No.6, PW15 is SI Dinesh Dahiya, the initial I.O of this case, PW16 is Inspector Mir Singh, the I.O of this case, who has deposed, regarding the investigation(s), as were carried out by him during the course of the present case, PW17 is Ct. Narender, the special messenger, who delivered the copies of the FIR to the Ld. MM and State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 9 other senior police officials, PW18 is HC Shamsher Singh, who had also accompanied the SI Dinesh Kumar to the spot, PW19 is Sh. A.K. Sachdeva, the Nodal Officer, Reliance Communications, who has proved that the said mobile No. 9313422141 was issued in the name of Smt. Sheela i.e the wife of the accused, vide application form, Ex.PW19/A and he also proved the cell I.D chart of the said mobile number, as Ex.PW19/B, PW20 is HC Harish Chander, who had deposited the sealed pullandas of the present case with the CFSL Kolkatta on 15.05.2006, PW21 is Ms. Sudesh Kumar, ACP Head Quarters, formal witness, regarding the weeding out of PCR form, PW22 is SI Manohar Lal, who prepared the scaled site plan of the spot, which is Ex.PW16/M, PW23 is Ct. Surender, the DD writer, who has proved the DD No.6, recorded on 08.04.2006, Ex.PW15/B, PW24 is HC Govind Singh, the MHC(M), who was responsible for safe custody of the case property, deposited with him by the I.O during the course of the present case, PW25 is HC Rajbir Singh of the PCR, who had received the information from one caller on 08.04.2006, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 10 regarding the lying of the dead body at main Mubarakpur Road, Prem Nagar-II, Sultan Puri.
15. Thereafter, statement of the accused U/s 313 Cr. PC was recorded, in which the entire incriminating evidence, appearing against the accused was put to him. The accused denied all the allegations against him, as per the prosecution witnesses, and stated that prosecution witnesses were false and interested one, and nothing was recovered from his possession or at his instance. All the recoveries have been planted upon by the I.O to falsely implicate him in this case.
16. I have heard the Ld. Amicus Sh. Aseem Bhardwaj, and Ld. Addl. PP for the state Sh. A.K. Srivastava, and perused the record.
17. The Ld. Amicus has argued that the entire case of the prosecution is based upon circumstantial evidence and there was no direct evidence in this case. He has further argued that the most material witness of the prosecution PW1 Rajender Prasad, who was the witness of last seen had turned hostile, and had not supported the State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 11 prosecution story, regarding him, having lastly seen the deceased in the company of accused on the previous night i.e on 07.04.2006, while drinking together. He has further argued that the prosecution has also miserably failed to prove that the said house number L-100/3 was in the possession of the accused or belonged to him or he was the owner of the same, as PW5 Shri Kishan, who was the witness of this fact had also turned hostile.
18. He has further argued that the entire alleged recoveries effected at the instance of the accused were highly doubtful in nature, as the mobile phone of the deceased has not been proved to be belonging to him, as no witness in this regard has been examined, nor any of his family members stated that the said mobile phone belonged to him. He has further argued that the prosecution has failed to prove that the blood stained clothes, belonged to the accused, nor it has been proved by the prosecution that the blood stains on the said clothes were of the deceased, as it was possible they may be of the accused only, as his blood sample was also not taken. He has also State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 12 argued that the same argument applies on sport shoes and the socks.
19. He has further argued that the recovery of blood stained razor (ustra) and other articles from an open plot of land is no recovery in the eyes of law, as the same was admittedly made from an public place, which was accessible to the public at large and it may be that the accused may be having knowledge that such articles were lying there or he may have seen somebody putting those articles there. He has further argued that the entire investigation in the present case is highly flawed, as no scientific investigation(s) were carried out in this case, and it was hard to imagine that no finger prints of the accused could be found from the entire house No. L-100 or the articles lying there, as if the accused had been using the said house or was in possession of the same, then some finger prints of the accused would have been lying there or should have been lifted. He has further argued that no prosecution witness has come and deposed that deceased Sandeep Hooda had made a telephone call on the mobile phone of the accused from a PCO Booth, regarding fixing of their State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 13 meeting, nor anyone had allegedly seen the accused dragging the dead body of the deceased from his house to the gali. He has further argued that the place in question was thickly populated and congested and it was next to impossible that the accused would have been able to place the dead body of the deceased in an open area, without anyone noticing the same. Consequently, relying upon the aforesaid arguments, he has argued that the entire prosecution story is hollow and does not inspire confidence and the accused is liable to be acquitted on such kind of evidence.
20. On the other hand, Ld. Addl. PP for the state has refuted the aforesaid arguments of the Ld. Amicus and he has argued that no doubt, there was no direct evidence in the present case. However, from the testimony of the prosecution witnesses, it is established that the accused was in possession of H.No. L-100, which was belonging to his brother-in-law (behnoi) and he was using the same, and it has also been proved by the prosecution that accused was repairing the said house, after coming out of parole, as the accused was a deadly State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 14 gangster of Anoop Gang, having number of cases against him.
21. He has further argued that the trail of blood leading to the said house and recovery of number of articles from the said house, including the hammer and spade (kassi), and blood marks at various places in the said house, clearly shows that the deceased had been hacked to death there and thereafter, his dead body was dragged and was placed at the spot, from where it was recovered by the public at large and call was made to the police. He has further argued that the recovery of mobile phone of the deceased and his mobile phone, which was in the name of his wife Sheela and the cell location of the same, shows that the accused was the culprit.
22. He has further argued that the recovery of blood stained clothes of the accused from his house and his blood stained shoes and socks from the same place also points out his culpability. He has further argued that the recovery of razor (ustra) at the instance of the accused and the recovery of other blood stained mattress and the pillow at the instance of the accused, after his arrest and disclosure State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 15 statement also point out to the culpability of the accused. He has also argued that the postmortem report and the subsequent opinion by the autopsy surgeon also points out towards the accused, as it has come in the subsequent opinion of the autopsy surgeon, that the injuries which are found on the body of the deceased were possible with the razor (ustra) or similar weapon. Consequently, he has argued that the prosecution has been able to prove the entire chain of circumstantial evidence, which only leads to one inference that is the culpability of the accused and none else. Consequently, he has argued that the accused is liable to the convicted for homicide.
23. I have gone through the rival contentions.
24. Admittedly, in the present case, there is no direct evidence and the entire case of the prosecution is based upon circumstantial evidence. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied-
(a) that the circumstances from which the inference of State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 16 guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:-
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save t hat of the guilt sought to be proved against him".
25. However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091- AIR 11952 SC 343 and stated the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' and 'must be or should be proved'.....
(2) the facts so established should be consistent only State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 17 with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they; should exclude every possible hypothesis except the one to the proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
26. The following circumstances were pressed into service by the prosecution for establishing the guilt of the accused.
(a). That the accused and the deceased were lastly seen together on the night previous to the incident i.e on 07.04.2006 in the H.No. L- 100, Prem Nagar-II, Sultan Puri, consuming liquor.
(b). That the dead body of the deceased was recovered from the corner of the gali of this house, situated at L-Block, Prem Nagar-II, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 18 Sultan Puri, with sharp edged injuries on the neck and the right hand, and there were blood trail/stains leading to the H.No.L-100.
(c). That the blood stains were also noticed on the door of the said house and inside the said house, one blood stained spade/kassi, hammer was found and there was blood stains at various places in the said house, and one pair of sport shoes, having blood stains including the socks were also seized from the same.
(d). That the said house at that time was in possession of the accused, who was getting the said house repaired, after getting the possession of the same from his Jija (Behnoi) PW5 Shri Kishan.
(e). That the accused was apprehended and made a disclosure statement and pursuant to his disclosure statement, he got recovered one Soni Ericson Mobile phone and one Tata Indocom mobile phone, belonging to the deceased.
(f). That the accused also effected the recovery of one pair of sport shoes, having blood stains from his residential H.No. P28, along with one white shirt and one black pajama, also having blood stains on State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 19 both. He also got effected recovery of blood stains socks from his house.
(g). That the accused also got recovered from a vacant plot one razor, having blood stains on it along with blood stained mattress and pillow. He also got recovered one blood stained mash (plastic niwar) from the same plot.
27. After appreciation of the circumstantial evidence, it has to be seen whether the prosecution has been able to prove the various circumstances beyond reasonable doubt, as enumerated above.
Circumstance No. (a)
28. Regarding the above circumstance, prosecution has examined one Rajender Prasad, one neighbour of the accused, who did not at all support the prosecution version, despite lengthy cross-examination by the public prosecutor. He in his cross-examination denied the prosecution story that on the night previous to the recovery of the dead body, he had seen accused with one more person i.e deceased in a drinking session, or that he saw the dead body of the said person, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 20 lying at the corner of the gali next morning, as that of the person, who was sitting with the accused, one night before. Consequently, the only witness examined by the prosecution on the said circumstance, having turned hostile. The prosecution has failed to prove the above circumstance, the same is decided in favour of the accused and against the prosecution.
Circumstance No. (b)
29. Regarding this circumstance, the testimony of PW15 SI Dinesh Dahiya, and that of PW16 Inspector Mir Singh, I.O is relevant. SI Dinesh Dahiya has deposed that on 08.04.2006, he was posted as Incharge PP Prem Nagar, PS Sultan Puri, Delhi. On that day, DD entry No.6, Ex.PW15/A was marked to him and he along with Ct. Suresh, Ct. Shamsher and Ct. Krishan Kumar reached at L-Block, Main Mubarkpur Road, Prem Nagar-II, in front of Vardhman Traders. One male dead body was found lying at the corner of the gali. The head of the dead body was towards North side and the feet towards South side. There was a pool of blood near the body and sharp State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 21 edged injuries on the neck and right hand of the body. Addl. SHO Mir Singh with staff also reached there. Efforts were made to get the dead body identified, but the same could not be identified.
The testimony of PW15, initial I.O SI Dinesh Dahiya is corroborated by the testimony of Inspector Mir Singh on the same point in material particulars. The recovery of the dead body from the said place is also proved by the photographs, which are Ex.PW10/A1 to A33, as well as from the report of the crime team incharge, PW8 SI Matadeen, who had also gone to the spot, on receiving the information, regarding the recovery of the dead body from there. The place of recovery of dead body is also pinned down by the FSL report, Ex.PX, as in the said report, human blood was found from the blood stained earth, lifted from the spot. The said dead body was identified as that of Sandeep Hooda by PW2 & PW3, later on in the mortuary. The testimony of the prosecution witnesses examined on the above aspect has gone unchallenged. Consequently, the prosecution has been able to prove the circumstance No. (b), which is decided in State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 22 favour of the prosecution and against the accused.
Circumstance No.(c)
30. Regarding this circumstance, testimony of PW15 SI Dinesh Dahiya and that of I.O PW16 Inspector Mir Singh is relevant. PW16 Inspector Mir Singh has deposed on this aspect that, on searching the dead body one blood stained small/pocket diary was also found. The dead body was bare feeted. The hairs were black. Efforts were made to get the dead body identified, but the same could not be identified. There was also throat cut mark on the neck of the dead body. There were also blood stains on the path leading towards the premises No. L-100. The blood stains were also noticed on the door of that house. On opening the house, there were blood stains in the lobby and room. One blood stained kassi and one iron hammer were also found in the house. Thee was also blood on the floor and walls in a room towards right side. One pair of sports shoes having blood stains and the socks were also found there. Bricks were also lying in front of the house and some bricks were having blood stains. The State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 23 blood was also noticed on the stairs of the house. On inquiry, it was revealed that the house belonged to accused Shyam Sunder. The scene was got photographed. Crime team was also called. Videography was also done.
He further deposed that crime team inspected the spot and handed over the report, Ex.PW8/A, and he also lifted blood stained earth from the various places from the said house, and in this manner, he lifted 6 samples of blood stained earth from the gali and also from the house in question, separately. He also seized the blood stained hammer, spade/kassi and bed sheet, including the earth control from various places of the said house.
31. The testimony of PW16 I.O Inspector Mir Singh is corroborated by PW15 SI Dinesh Dahiya, the initial I.O of this case, who had first of all gone to the spot on receipt of DD No.6, Ex.PW15/A, regarding the recovery of the dead body, near L-Block, in front of Vardhman Traders, Prem Nagar. From the aforesaid testimony of PW15 & PW16 on this aspect, and the fact that nothing has come out in the State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 24 cross-examination of these witnesses on the above aspect, clearly proves the prosecution version, regarding the blood stained trail leading to the said house No. L-100, and the recovery of blood stained spade/kassi, iron hammer, blood stained sport shoes, socks and blood stained bed sheet from the said house, as well as the recovery of blood from various parts of the said house, which is also corroborated by the FSL report, Ex.PX, in which also in the samples of the blood stained earth as well as bricks, human blood was found to be positive, and human blood was also found positive on spade/kassi, iron hammer and the bed sheet. Therefore, prosecution has been able to prove the aforesaid circumstance, which is decided in favour of the prosecution and against the accused.
Circumstance No. (d)
32. Regarding this circumstance, the prosecution has examined two witnesses, PW4 Gulab and PW5 Shri Kishan. PW4 Gulab has deposed that he does not know the accused, but his bhanji Parmeshwari Devi had sold one plot No. 92C, Kirari, Prem Nagar-II, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 25 vide GPA, receipt and will to one Shir Kishan vide document, Ex.PW4/A to Ex.PW4/C, and the same bears impression of his signatures. As per said document, it appears that the said house from where the blood stained articles as discussed in the previous circumstance were recovered, was the same, which was sold by the Bhanji of aforesaid witness to PW5 Shir Kishan i.e his house, bearing No. L-100, as the said documents, bears the signature of the said witness, as an attesting witness on all the said documents. Therefore, the said witness was competent to prove the said documents.
PW5 has also deposed that he had purchased the said plot from one Parmeshwari Devi vide said documents, Ex.PW4/A to Ex.PW4/C, and from the date of purchase till 2006, the said plot was in his possession. However, he turned hostile, regarding the remaining part of the prosecution version, as he denied that he had given the possession of the plot to the accused. Since, the said witness has not supported the prosecution version, that the said State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 26 house was in possession of the accused Shyam Sunder, as per the testimony of the said witness, though, I.O PW16 Inspector Mir Singh in his cross-examination has stated this fact that accused was in possession of the said house was verified by his neighbour Rajender and also his wife, but he had not collected any proof, regarding the said fact that the accused was in actual possession of the said house.
33. In these circumstance, since the I.O himself admits that he had not collected any proof, that the accused was in actual possession of the said house, and further the I.O himself had admitted that he had not verified, who had supplied the building material, which was lying there, he had asked some neighbourers regarding the supplier of the building material, but he could not find any satisfactory answer, and he also made inquiries from the building material supplier. However, as per the prosecution witnesses, examined on the record, no such building material supplier had been cited as a witness by the I.O for the reasons best know to him, which would have been the best piece of evidence to support the prosecution version, that the accused was State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 27 in possession of the said house.
34. Further, the I.O did not carry out any scientific evidence in this case, as admittedly no finger prints were lifted from the said house in question, nor from the blood stained spade/kassi, iron hammer and from other articles, which has even been admitted by him in his cross- examination. Though, evasive reply was given by PW15 SI Dinesh Dahiya in this regard. It is next to impossible that if a person is residing or is in possession of a particular place or house that his finger prints would not be available in any part of the said house or the said place, where he is inhabiting. The finger prints could have been easily found, when more so, on the articles stained with blood, as the finger prints tend to become more prominent when put with some liquid substance, like blood. It appears that I.O had made no worthwhile efforts to lift any finger prints from the said house or to carry out any scientific investigation in this regard, despite calling the crime team to the spot. It is not clear, what was the purpose of calling the crime team to the spot, if no finger prints were lifted from such a State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 28 large number of articles from the said house, bearing No. L-100, which allegedly belonged to the accused.
If some positive efforts would have been made by the I.O, then the same would have definitely yielded results and would have connected the finger prints or the foot marks found from the said place, with that of the accused. Consequently, prosecution has failed to prove the above circumstance No. (d) that the accused was in possession of the said house No. L-100 at the time of the incident, or was getting it repaired at that time, therefore, the aforesaid circumstance is decided in favour of the accused and against the prosecution.
Circumstance No. (e) & (f)
35. These circumstances are taken up together, as they are interconnected with each other. Regarding this, the testimony of PW15 & PW16 is relevant. PW16 has deposed that accused was searched and was apprehended from his house No P28, Prem Nagar- II, he was interrogated and he confessed guilt and made a disclosure State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 29 statement, Ex.PW15/T. Thereafter, he produced one Soni Erricson Mobile phone and also produced on Tata Indocom black mobile phone to him, which was seized. Thereafter, the accused also got effected recovery of one pair sport shoes, make Campus, having blood stains on it, from his residential house, which was also seized. The accused also got recovered one white shirt and one black pajama, having blood stains on them. The same were also seized. Thereafter, accused also produced blood stained socks, which were also seized.
The testimony of PW15 SI Dinesh Dahiya converges with the testimony of PW16 Inspector Mir Singh on the point of accused making disclosure statement and recovery of above blood stained articles and clothes from his house.
36. Both PW15 & PW16 in their cross-examination had admitted that the house of the accused was surrounded by other houses, but none was joined in the investigation, as no one collected at the time of apprehension of the accused.
State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 30
37. The recovery of the aforesaid mobile phones does not prove anything against the accused, as the I.O PW16 Inspector Mir Singh has himself admitted that he had not obtained any call details or record, pertaining to the two mobile phones, seized. Though he stated that both of them were not found functional at that time, and he also made inquiries, but he could not found out, as to who was the owners of the said mobile phones. The aforesaid omission on the part of the I.O, in not obtaining the call details of the said mobile phones and their ownership record clearly jeopardized the case of the prosecution, as important evidence, regarding the cell I.D location of the said mobile phones at the time of the incident or sometime prior to that would have revealed some interesting facts before the court, but the same were not collected by the I.O. Further, though the prosecution has examined PW13 Sh. Sanjeev Lakra, Nodal Officer, from Reliance Communications, who has proved the call details with regard to the Mobile Phone No.9313422141 in the name of one Sheela, wife of the accused. Similarly, prosecution has examined State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 31 PW19 Mr. A.K. Sachdeva, another Nodal Officer, from Reliance Communications, to prove that the said mobile phone was in the name of Smt. Sheela, wife of the accused, vide document, Ex.PW19/A. As per the prosecution story, the deceased Sandeep Hooda had made a phone call on the said mobile phone on 07.04.2006, which was in possession of the accused at that time, from one PCO booth. However, none of the two witnesses examined by the prosecution on this aspect, namely, PW6 Ram Sing Chauhan and PW9 Akhilesh Kumar Jha could prove that it was the deceased, who had made the phone call to the aforesaid mobile number on the evening of the fateful night i.e on the evening of 07.04.2006.
In these circumstances, the prosecution has failed to prove that one mobile phone belonged to the accused and the other one of Tata Indicom belonged to the deceased, which was recovered at the instance of the accused.
Regarding the recovery of one pair of sport shoes, having blood stains on it along with one white shirt and one black pajama also State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 32 having blood stains on them and the recovery of blood stained socks from the house of the accused. As discussed above, no independent witness from the locality or nearby the house of the accused was joined at the time of the recovery to lend assurance to the same, which would have great probative force to authenticate the recovery of those articles.
As per the FSL report, Ex.18 i.e the shoes were found negative for blood. Similarly, as per the said report, shirt, which is Ex.19A was also found negative for blood, whereas, pajama, Ex.19B was found positive for human blood, but no blood grouping was found on the same. Similarly, on the socks, Ex.20, it was found positive for blood, but the blood was found degraded on the same. Therefore, in these circumstances nothing favourable has come out in the said FSL report, which could connect those articles with those of the deceased, that is to say that the blood found on those articles and clothes was of the deceased. In any case, the I.O for the reasons best known to him had not taken any blood sample of the accused, which was an State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 33 important omission on the part of the I.O, if some positive results would have been achieved on those articles in the FSL report in the shape of blood grouping, as matching that of deceased, even then the prosecution case would have suffered, as the accused could have taken the plea that the blood group found on the same was that of his.
38. Further, the Ld. Amicus has argued that the clothes and the shoes/socks does not belong to the accused, as the prosecution has not produced any witness that the said clothes fitted the size of the accused. I find sufficient merit in the same, that the prosecution has not produced any witness, who could say that the said clothes perfectly fitted the size of the accused. Further, some scientific evidence could have been collected by the I.O to prove this fact in the shape of sweat analysis test of the accused, which would have clearly proved that the sweat found on those clothes was of the accused only. The prosecution has also failed to prove that the shoes/socks belonged to the accused for the same reason, as a sweat analysis test on them, would have also connected the accused with the crime, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 34 for which he has been charged.
39. In these circumstances, the prosecution has failed to prove the aforesaid circumstances No. (e) & (f), which are decided in favour of the accused and against the prosecution.
Circumstance No.(g)
40. Regarding the circumstance No.(g), testimony of PW15 & PW16 is again relevant. PW16 I.O has deposed that after the recovery of articles mentioned in the preceding paras, the accused lead the police party to vacant plot and got recovered one razor, having blood stains on it, which was lying under the pillow, lying in the vacant plot, which was also seized, after preparing the sketch of the same. He also got recovered, blood stained mattress from the said plot, including blood stained mash (plastic niwar), which was also seized. The testimony of PW15 SI Dinesh Dahiya also converges on the aforesaid aspect with the testimony of PW16, I.O. However, PW15 in his cross-examination has admitted that place of recovery of razor was a vacant plot, which was easily accessible to the public at State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 35 large, though it was not a thoroughfare. However, no public person had been joined in the proceedings at the time of recovery of razor. Similarly, I.O in his cross-examination admitted that the place of recovery of razor and pillow was frequented by public persons. Though, it was not a thoroughfare, and that some public persons were standing near at a distance, and he had also not prepared any sketch of the spot of the said recovery.
41. It has been held in judgement 2003 (2) JCC 827, Aslam Parwez etc. Vs. Govt. of NCT of Delhi, regarding the aspect of recovery effected from open place, accessible to all in para 12 as under:- No.157 (page).
The inference to be drawn where an incriminating article is recovered at the pointing out of an accused from an open place accessible to all was considered by us in Crl.A./No./685 of 2001 Salim Akhtar @ Mota v. State of Uttar Pradesh decided on 9.4.2003 and it was observed as under:-
"In Sanjay Dutt v. State through C.B.I., Bombay, 1994 (5) SC 540 it has been held by a State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 36 Constitution Bench that with a view to hold an accused guilty of an offence under Section 5 of TADA, the prosecution is required to prove satisfactorily that the accused was in conscious possession, unauthorisedly in a notified area of any arm or ammunition of the specified description. In Trimbak v. State of MP, AIR 1954 SC 39 recovery of certain stolen articles was made at the pointing out of the accused and on that basis he was convicted under section 411 IPC by the High Court. Reversing the judgment it was held by this Court that when the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. It was further held that the fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. In Raosaheb Balu Killedar v. State of Maharashtra (1995) 3 Crl. Law Journal 2632 the accused had made a disclosure statement and had led the police party to a place behind a mill, pointed out the place and himself removed the earth and from a pit about 6 inches deep recovered a revolver loaded with a live cartridge wrapped in a polythene bag. It was held by this Court that State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 37 the statement made by the accused was capable of an interpretation that the appellant had the knowledge about the concealment of the revolver at the particular place from where it was got recovered and not that he had concealed the same and therefore it was not possible to say conclusively and beyond a reasonable doubt that the appellant had conscious possession of the revolver and the cartridge. This principle was reiterated in Khudeswar Dutta v. State of Assam (1998) 4 SCC 492 and it was held that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to conscious possession and conviction under Section 5 of TADA was set aside."
In view of the law laid down in the said judgement, the accused at the most can be said to have knowledge that such articles were lying at such a place or the accused could be having knowledge, on being told by someone that such articles were lying there, or accused could have simply seen someone putting those articles, therefore, it cannot be said conclusively that the accused had concealed those articles there.
Even otherwise, in the FSL report, on the razor, Ex.21, it was State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 38 found positive for blood, but the blood was found degraded, therefore, blood grouping could not be ascertained. Similarly, on Ex.22(1), which is dari/mattress, similar result was found, and on the pillow, Ex.22(2), same was the result. On the plastic niwar, Ex.23, it was found to contain blood of human origin, but no grouping was found on the same. Therefore, the FSL report has in no way improved the case of the prosecution. Further, the I.O had not lifted any finger prints from the razor. The said evidence would have been conclusive evidence to connect the accused with the crime in question. The same was an important omission on the part of the I.O. In these circumstances, the prosecution has miserably failed to prove the recovery of the aforesaid articles, including the weapon of offence, at the instance of the accused. Consequently, this circumstance is decided in favour of the accused and against the prosecution.
42. From the aforesaid discussion, the prosecution has been able to establish only the circumstance No. (b) & (c) in their favour, beyond any sort of doubt. The prosecution has failed to prove the remaining State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 39 circumstances, relied upon by them.
43. Now, it has to be seen whether from the aforesaid circumstance(s), which have been established by the prosecution beyond any sort of doubt, whether the circumstance so established unerringly points towards the guilt of the accused and whether the circumstances taken collectively are incapable of explanation of any reasonable hypothesis, save that of guilt of the accused and whether the circumstances proved by the prosecution form a chain so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
44. The afore circumstances proved by the prosecution does not lead to an inference, that accused alone had committed the offence, as there are lot of links missing in the prosecution chain of circumstances. The benefit of which must go to the accused, even at the risk of repetition. There has been totally lackluster investigations, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 40 carried out by the I.O of this case, which is resulting in the acquittal of a dreaded criminal. The following important omissions/deficiencies were found out in the investigation of the investigating officer. i. Total absence of scientific investigation(s), as no finger prints were lifted from the H.No. L-100 or the articles, recovered at the instance of the accused, including the weapon of offence. It is next to impossible that if any particular person is residing at a particular house, then his finger prints would not be found from any article, seized from the said house, including the door or the handle of the entry gate, or from the other articles, including the iron hammer or iron spade/kassi. In this regard, it seems that I.O had made no worthwhile efforts to even collect the same, nor any foot marks were taken despite the area being blood stained all around. The emphasis of the I.O was on carrying out investigation in a routine manner without relying upon scientific investigations.
ii. No sweat analysis of the clothes of the accused was taken for comparison with the sweat, belonging to the accused. The informer, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 41 one Prem Chand, who made a call at 100 number, as per the PCR form, Ex.PW25/A, regarding the recovery of the dead body was also not examined by the I.O, for the reasons best known to him, who would have also shed important light on the matter. iii. No evidence was collected by the I.O, that the mobile recovered from the possession of the accused was that of the deceased.
iv. No evidence was collected that the deceased Sandeep Hooda had come to meet the accused in terms of recording the statement of his relatives or friends.
v. Strangely, the I.O examined Behnoi of the accused for showing that the H.No. L-100 was in possession of the accused, as the said witness was predestined to turn hostile, due to his close relationship with the accused, therefore, the I.O should have made efforts to examine some other witness.
vi. The building material supplier was not examined, who allegedly supplied the building material for the repair work to prove that the State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 42 accused was in possession of the said house. The receipt in his possession would have proved this fact that the accused was in possession of the said house at the time of murder. vii. Further, no beat constable of the area was examined, as judicial notice can be taken of this fact that, whenever even a small construction is raised anywhere in Delhi, then a beat constable of the area or number of other authorities suddenly appear from nowhere to ask about the same, why beat constable was not examined to prove that the accused was doing construction work in the said house, as it was the duty of the beat constable to inform the SHO, regarding any illegal construction going on in the area, as per the Municipal Rules.
45. From the aforesaid grave deficiencies in the investigations of the present case by the I.O, it appears that either same the had occurred due to the lack of knowledge or training, apathy or some other ulterior motives, or it appears that the I.O was not properly equipped in carrying out the investigation(s), or he left such lacunas for other reasons, State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 43 In any case, the investigation of a murder case entails serious consequences, as one human being is killed by another one, and no one has right to destroy human life, which cannot be created by humans, only God creates human beings, and has ways to take it away, this kind of investigations only leads to withering of faith of the society in the criminal justice system. The superior police officials should also see to it, that the investigations of homicide cases should only be entrusted to the properly trained investigating officers, not in a perfunct manner to Additional SHO/SHO's, posted at a particular police station.
46. In these circumstances, copy of this judgement be sent to Commissioner of Police for initiating departmental proceedings/inquiry against the investigating officer, in view of the observations made above, Commissioner of Police, Delhi is further directed to give a compliance report/action taken report before this court by the next date of hearing i.e 28.05.2011, for which a separate miscellaneous file be prepared by the Ahlmad.
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47. As discussed above, the prosecution has failed to prove the entire chain of circumstantial evidence against the accused, as lot of vital links are missing in the prosecution story, and on this kind of evidence, the accused cannot be convicted. The probative force of the circumstances proved by the prosecution against the accused, has very low probative force, that is to say that the probative value of the circumstances proved by the prosecution against the accused is touching the point of uncertainty or very low credibility on the probative scale, where the probabilities of happening any event is measured/assessed.
48. Consequently, the prosecution has failed to prove its case against the accused. Consequently, the accused stands acquitted of the charge U/s 302 IPC. He be released from J.C, if not required in any other case, after furnishing bail bonds as prescribed U/s 437A Cr. PC. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 07.05.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44 45 State Vs. Shyam Sunder PS Sultan Puri FIR No.529/06 1-44